Nanhu Mahton vs Emperor

Scroope, J.—This is a reference u/s 374, Criminal P.C., in respect of one Nanhu Mahton who has been convicted u/s 302, I.P.C., by the Sessions Judge of Manbhum-Sambalpore in disagreement with the assessors for the murder of one Khudu Mahaton of village Merenda in Jhalda, P.S.

The prosecution case is that on the night of 26th October last Khudu Mahato with his relatives Balaram Mahato, Sonaram Mahato, Jugal Mahato and Baneshwar Mahato spend the night in the Kishumghutu jungle in order to watch their lac treees and that while sleeping side by side that night under a palas tree Khudu''s companions were awakened by his groans and actually saw the accused Nanhu withdrawing his are from Khudu''s head Khudu expired almost instantaneously and Nanhu ran off. This is the story told by these four witnesses and if; has been accepted by the learned Sessions Judge. It is necessary to state, however, that Jugul (P.W.2) in the Sessions Court whilst corroborating his companions on other points states that he was not able to recognise the assailant whereas before the committing Magistrate he said definitely that Nanhu was the assailant.

Somewhat similar is the evidence of another witness Kinu Mahato (P.W.13) in the Sessions Court. He stated that he saw a man like the accused proceeding eastward with a weapon in his hand (that would be before the murder) whereas before the committing Magistrate he definitely identified this man as Nanhu. The learned Sessions Judge relied on the depositions of these two witnesses as given in the first Court in preference to the evidence in the Sessiions Court, although the former were not put to the witnesses in the Sessions Court and the learned advocate for the appellant urges that these first statements should not have been admitted in evidence u/s 288, Criminal P.C., as they were not put to the witnesses in the Sessions Court. He relies on the following dictum in Lachhmi Lal Vs. Emperor, .

To put in such evidence is permissible but it has bean repeatedly laid down and it is now settled law that such statements should not be put in without the attention of the witness being drawn to the portion of the statement which it is desired to use.

Of much the same effect are the decisions in Queen Empress v. Dan Sahai [1885] 7 All. 862 Bajrangi Lall v. The Empress 4 C.W.N. 49 and Emperor v. Zawar Rahman [1904] 31 Cal. 142, The learned Government Advocate, however disputes the correctness of the view taken in Lachhmi Lal Vs. Emperor, and argues that Queen Empress v. Dan Sahai [1885] 7 All. 862 on which it is presumably based has beon subsequently overruled by Emperor v. Dwarka Kurmi [1906] 28 All. 683 and a series of cases in which it has been held that statements admitted u/s 288, Criminal P.C., are on the same footing as evidence taken in the actual Sessions trial: for instance, Queen Umpress v. Doraswami Ayyar [1901] 24 Mad. 444, Emperor v. Maruti Joti Shindi B G.P AIR 1922 Bom. 108 Bachala Peda Somadu and Others Vs. Nethipudi Appigadu and Others, and Sashi Mohan Tarkasastri and Others Vs. Meajan Haji and Others, .

It must, however, be borne in mind that the question here is whether depositions taken in the committing Magistrate''s Court which contradict the evidence given in the Sessions Court can be put in u/s 288, Criminal P.C., without putting them to the witnesses, and none of the cases cited by the learned Government Advocate dealwith that point specifically except perhaps the case of Emperor v. Dwarka Kurmi [1906] 28 All. 683. In that case their Lordships of the Allahabad High Court dissented from the following general dictum of Straight, J.:

Section 288, Criminal P.C. was naves intended to be used so as to enable a Court trying a cause to take a witness''s deposition bodily from the committing Magistrate''s record and to treat it as evidence before the Court itself.

Straight, J., however, qualified this dictum as follows at any rate:

At any cats a Judge is bound to put to the witnesses whom he proposes to contradict by their statements made before the commiting Magistrate the whole or such portions of their depositions as he intends to rely upon in his decisions so as to afford them an opportunity of explaining their meaning or denying that they had made any such statements and so forth.

and Banerji, J., who was one of the Judges in that case while dissenting from the general proposition refers with approval to the qualifying words of Straight, J. Aikman, J., who was the other Judge in that, case does not deal with the question as to how far admissibility is affected by failure to put the depositions to the witnesses. He discussed only the general proposition and held that once these statements are admitted they are on the same footing with all other evidence in the case. The whole point here is whether such a statement can be admitted without being put to the witness. There is no doubt, having regard to the state of the authorities that once they are admitted they are on the same footing with any other evidence in the case for the language of Section 288, Criminal P.C. is quite clear now. (Since the amendment of 1923) but Section 145, Evidence Act must govern the position in so far as these statements are used for contradicting the witnesses.

The learned Government Advocate, however argues that he does not wish to contradict the depositions of these witnesses given in the Sessions Court by means of the depositions in the first Court; he wants the latter to be taken simply as substantive evidence in the case along with the other evidence but this in my opinion is begging the question. I do not see how the prosecution can place on the record two contradictory statements from the same witness and rely on one as substantive evidence without contradicting the other and I do not see that the purpose for which the original statement in the commtting Court is brought on the record makes any difference if that is the incidental result. In other words my opinion is that Section 145, Evidence Act, operates even if contradiction is not the main purpose of bringing the first deposition on the record but is only incidental thereto. On the whole, therefore, I am not prepared to say that the decision relied by the learned advocate for the appellant Lachhmi Lal Vs. Emperor, is bad law or Queen Empress v. Dan Sahai [1885] 7 All. 862 either in so far as it lays down that depositions given in the lower Court which contradict the statements in the Sessions Court should be put to the witnesses before they are admitted u/s 288: see also Woodroffe in his Criminal Procedure Code, p, 334:

The Judge is bound to put to the witnesses whom he proposes to contradict by their former statements before the committing Magistrate the whole or such portions of their depositions as ha intends to rely upon in his decisions, so as to afford them an opportunity of explaining their meaning or denying that they had made any such statements and so forth.

I have dealt with this point at some length, because Sir Sultan Ahmad pressed his point of view against the decision in Lachhmi Lal Vs. Emperor, with considerable force and has asked us for a considered ruling on this question. The question is really, however, academic, here, because assuming that these earlier statements are admissible they do not strangthen the rest of the evidence on the record which to my mind is thoroughly unreliable throughout. Though these four witnesses would have us believe that they saw the accused Nanhu withdrawing his axe from the head of Khudu yet none of them mentioned the name of the assailant to the villagers on the morning of the occurrence. The murdered man''s mother Mundria Mahatani states that she heard about her son''s death; on the following morning from Baneshwar. Baneshwar did not then name the accused, his explanation was that he apprehended that he might be implicated. When the writer head-constable visited the village on the afternoon of the 27th, he being, in charge of the thana as the Sub-Inspector was away, he saw these witnesses but none of them gave the name of the assailant. The witnesses say that they were afraid to do so. This could only have been either fear of the accused or fear of being implicated. There was no reason to fear the accused, the police had taken the matter up and these four-witnesses could not have been so terror-stricken. As to fear of being implicated I do not see how a disclosure of the name of Nanhu could have made the case any blacker against the witnesses; in fact rather the contrary suspicion was very black against them already, because apparently they did not deny to the writer head-constable that they had been sleeping with the deceased man on the night of the murder in the Kisumghutu jungle. They were so much under suspicion that on the arrival of the Sub-Inspector in the village-on the 28th he searched their houses, and discovered on the person of Baburam a gilaf or a quilt and in the house of Lakshman Manato, father of the accused, a kantha on both of which there were red stains. It was then that the witnesses spoke out. The learned Sessions Judge puts it as follows:

The recovery of the said two articles evidently led the above four witnesses to believe that the Sub-Inspector of Police succeeded in finding out the real truth and it seems to mo that though in their anxiety to screen the accused they had so long minced matters, they at last under the circumstances stated above thought it prudential for their own safety to give out the real truth and that accordingly they admitted the same to the investigating police officer.

It does not affect the value of their evidence that the stains subsequently found were not those of human blood. The point is that the witnesses only implicated the accused when they were faced with the necessity of exculpating themselves, and therefore their evidence is open to grave suspicion. The learned Sessions Judge has not attached at all sufficient weight to this fact. The excuse of fear is the stock one put forward for failure to speak out the truth at once in this type of case, but hero it is more suspicious than ever owing to the fact that the witnesses were under the gravest necessity of fixing the guilt on to somebody in order to save their own necks.

Their evidence also is inherently improbable. The medical evidence shows it hat the deceased had one wound, a gaping incised wound 8 �, "x 1-3/16" on the left side of the head cutting completely through the skull and the brain substance. If the witnesses are to be believed Nanhu must have crept up stealthily in the night when the watchers were sleeping and must have then inflicted this fatal wound. The doctor was not examined on the point but it seems to me most unlikely that the accused could have groaned after such a wound and it could have been delivered and the weapon withdrawn after delivery in a fraction of time. The witnesses were all sleepingyet. Nanhu was long enough there to allow them to recognize him. It was in the middle of the night, according to the calendar the moon would not have risen on the night in question until about 1 a.m. The witnesses got over the difficulty of darkness by saying that the moon was then in the east; they were all sleeping under a large palas tree. I do not believe that even assuming the truth of the basis of their story that Khudu was murdered while sleeping with the witnesses there was any recognition at all -of the assailant. It is perfectly obvious that the circumstances were all against recognition as the light of the moon would have been of very little assistance to bring about the complete recognition by a man just awakening from sleep.

There is another stock story introduced into the case, namely, the discovery of the table. According to the Sub-Inspector Golam Mustafa he examined the accused Nanhu. Mahaton after 4 p.m. whereupon he led him and about 25 or 30 villagers to a bari land just to the north of the house of one Bidhu Mahatani and dug up from &he depth of 9 or 10 inches a tabla or small axe. Assuming that the accused did produce the tabla in the manner described by the Sub-Inspector I do not think much weight attaches to it. It is quite probable that as Baburam was implicating Nanhu, Nanhu should have tried to implicate Baburam by burying a tabla and then producing it for the police and its discovery is just as consistent with incriminating evidence against Baburam as it is with incriminating evidence against Nanhu. Bidhu Mahatani, to the immediate north of whoso house lies the bari land from which the tabla was produced, states that on the day after the murder she saw the accused Nanhu near her bari land carrying an axe which was partially concealed by some thorny plants. The suggestion is that this must have been when he was on his way to bury the axe; this is an incredible story. It is contrary to common sense that the man who commits a murder would try to dispose of the weapon in this fashion in broad day light.

This witness is the woman in the case, the allegation being that Nanhu is carrying on an intrigue with her which had annoyed some of the Mahatos, that there was a panchayat at the instance of Khudu, the deceased, that both Nanhu and Bidhu were fined for misbehaviour, and that as a result of the grudge he bore on this account, Nanhu murdered Khudu, The woman is obviously afraid of being implicated in the murder and hence she could easily be got to fill in any necessary details that will serve to clinch the case finally against Nanhu. That aspect of her evidence has been overlooked by the learned Sessions Judge when he regards. her as proving beyond any reasonable doubt that the accused had hidden the tabla after the murder. It is noticeable that the accused was not under arrest when he produced the tabla and was only arrested later in the day. This makes me think that the accused may have been tricked into disclosing a tabla under the impression that it would be used against the other Mahato notably Baburam, instead of against himself. Baburam states that it was only after the production of the tabla that he told the Sub-Inspector that he had seen the accused pulling out the tabla from the head of Khudu and running away then towards the nala. Sonaram contradicts him on that point. The latter also states in cross-examination that the Sub-Inspector had threatened to send up Baburam, and Jugal states that the daroga also threatened to challan him. Be that as it may, it is quite clear that the eyewitnesses spoke under extreme pressure and to save themselves. Kinu Mahato another witness relied on by the learned Sessions Judge, so far as his statement in the lower Court is concerned, is also trying to prove the case to the hilt when ha states that at about midnight on Saturday he had seen the accused passing through the jungle with a tabla in his hand. He was one of the villagers who was under suspicion in respect of this murder. The learned Sessions Judge was also much impressed by the fact that human hair was detected on the tabla by the Chemical Examiner. The Sub-Inspector of Police and two Poddar witnesses examined the weapon with the help of a magnifying glass after its discovery and they say that they noticed some hair adhering thereto.

It passes my comprehension how any hair could have adhered to the axe after it had been buried and then dug up, or, at any rate be visible by the aid of any microscope likely to be available to a Sub-Inspector of Police. Obviously any human hair that may possibly have adhered to the weapon would have been completely obliterated by the earth that, became attached to the tabla consequent upon its being buried. Frankly I do not believe the evidence on this point; if in reality, human hair was found on the tabla it was put there by somebody in order to create evidence. A tabla is a most ordinary weapon for the Manbhum peasant and I do not believe Raghu Mahato either when he states that he saw the accused purchase it about eight months prior to this occurrence. The point that the wound 8j inches long tallied with the circumference of the blade of the tabla also 8i inches long weighed with the learned Sessions Judge, as if a wound inflicted by a smart blow of a hatchet would exactly coincide in length with the size of the hatchet. Quite the contrary is usually the case; a splitting wound of this nature would ordinarily exceed it in length. This ends practically all the evidence and it does not convince me in the slightest degree; most of it is childishly unconvincing; the Mahato witnesses are deposing with a reckless disregard of truth in order to save themselves ; there should have been no conviction in this case. I would therefore set aside the conviction and sentence of death passed by the learned Sessions Judge and acquit the appellant. He should be released at once.

Dhavle, J.

I agree. The Government Advocate has frankly conceded that the case must fail if the four eyewitnesses are disbelieved. Considering the conditions of time, I doubt very much whether they could really have seen the offender at all; and their repeated failure to name him, which has not been satisfactorily explained, does not make it at all easy to believe them, to say nothing of the fact that they seem to have named the appellant with the full consciousness that they had to save themselves. The production of the tabla is also extremely unconvincing as an incriminating circumstance against the appellant. It is, therefore, impossible on the evidence to uphold the conviction, quite apart from the way in which the depositions of Jugal and Kinu before the committing Magistrate were used by the learned Sessions Judge u/s 288, Criminal P. C. In. this connexion there has been much discussion before us regarding the soundness of the dictum in Lachhmi Lal Vs. Emperor, , that though it is permissible u/s 288 to put in such depositions:

it has been repeatedly laid down and it is-now settled law that such statements should not be put in without the attention of the, witness being drawn to the portion of the statement which it is desired to use.

The Government Advocate has strenuously contended that the law does not require this to be done. The learned; advocate for the appellant has referred the dictum to the authority of Empress v. Dan Sahai [1885] 7 All. 862 and Bajrangi Lall v. Empress 4 C.W.N. 49. It does not seem to me that the decision in Bajrangi Lall''s case 4 C.W.N. 49 has really any bearing on the precise point in question. In Dan Sahai''s case [1885] 7 All. 862, however, Straight, J., expressed himself about Section 288, Criminal P.C., in these words:

That section wag never intended to be used BO as to enable a Court trying a case to take a witness''s deposition bodily from the Magistrate''s record, as the Judge has done here, and to treat it as evidence before itself ; and I entirely concur in the remarks made on this head by phear, J,, in Queen v. Amanulla 12 Beng. App 15 At any rate the Judge was bound to put to the witnesses he proposed to contradict by their former statements the whole or such portions at their depositions as he intended to rely upon in his decision, so as to afford them an opportunity of explaining their meaning, or denying that they had made any such statements, and so forth. The course adopted by the Judge was contrary to practice, and inconsistent with all the rules regulating the admissibility of evidence...

The first part of these observations, which relates to the admission of whole depositions as distinguished from particular statements contained in them, is based on Amanulla''s case 12 Beng App 15 which was decided under the Criminal Procedure Code of 1872. Section 249 of this Code, which corresponds to Section 288 of the present Code, ran in these words:

When a witness is produced before the Court of Session or High Court, the evidenee given by him before the committing Magistrate may be referred to by the Court if it was duly taken in the presence of the accused person, and a Court may, if it thinks fit, ground its judgment thereon, although the witnesses may at the trial make statements inconsistent therewith.

Shortly after the decision in Amanulla''s case 12 Beng App the section was amended by Act 11 of 1874 to run as follows:

When a witness is produced before the Court of Session...the evidence given by him before the committing Magistrate may, in the discretion or the presiding Judge, be treated as evidence in the case, if it was duly taken in the presence of the accused person.

This, unlike the original section, clearly made the previous deposition " evidence in the case," and Section 288 of the Code of 1882, which was in the same terms as the present section without the amendments introduced by the Act of 1923, made no change in the position, Dan Sahai''s case [1885] 7 All. 862 was decided under the Code of 1882, but Straight, J., in following the observations in Amanulla''s case 12 Beng App. 15, does not seem to have noticed the change in the law. Dan Sahai''s case [1885] 7 All. 862 was considered by the Allahabad High Court in Emperor v. Dwarka Kurmi [1906] 28 All. 683, when Banerji and Aikman, JJ,, held that u/s 288, Criminal P.C., depositions before the committing Magistrate may be evidence in the Sessions trial; and since then it has no longer been held in any High Court that the section was meant to authorise the Court to take only particular statements and not whole depositions, as evidence in the Sessions trial.

The second part of Straight, J''s., observations refers to the necessity or otherwise of affording the witnesses an opportunity of explaining their meaning, etc. This mutt be considered not in the light of the Criminal Procedure Code but of the principles of the law of evidence. In Reg. v. Arjun Megha 11 Bom. H.C. 281, which was decided shortly after the amendments made in the Criminal Procedure Code by Act 11 of 1874. Section 249 was explained to mean that the Sessions Judge bad discretion to consider the depositions given before the committing Magistrate in the preliminary inquiry as

evidence for the purposes of the tiial in the Court of Sessions,

and that the exercise of the discretion is open to review in appeal:

If he (the Sessions Judge) finds that the statement of the witnesses in his own Court differ materially from those previously made by the same witnesses,

said West, J.:

it is his duty to examine them as to the discrepancies, and this is more especially his duty when the prisoners are undefended, and contradictory testimony is given by the prosecution. But if he thus examines the witnesses, he ought: (see Taylor en Evidence, Sections l,300,1301, and Evidence Act, Section 155,) in ordinary oases to make the depositions upon which he has examined them evidence in the case: he is at liberty to do so, and the power should be exercised so as to bring all relevant matter, so far as possible, under c onsideration in forming a judgment on the case. If the Sessions Judge has omitted to examine witnesses on obvious and important discrepancies in their statements, this Court will in general direct that such an examination be made, and the Sessions Judge having the witnesses before him for such a purpose, will, in most cases, feel it his duty to make the former depositions evidence quantum valeant for the purposes of the final adjudication in appeal.

This early interpretation of the section gives one reason why witnesses should be questioned regarding their previous depositions and the depositions then brought on the record of the Sessions trial.

Edge, C.J., ordered a retrial in Empress v. Jawahar [1886] A.W.N. 256, because the Sessions Judge had:

taken into consideration as evidence against the accused, statements made by witnesses before the committing Magistrate, without, giving the accused any previous notice or warning, eithar by examining the witnesses as to the previous siatemaatj or otharwiss of his intention to do so.

The learned Chief Justice held that the conductors of the prosecution and the defence ought to have full notice of the admission of evidence u/s 283, and after expressing agreement with every word that Straight, J., had said in Queen Empress v. Dan Sahai [1885] 7 All. 862, he observed:

I go further and say that before the Juigs presiding at a criminal trial can use as evidence on which in whole or in part, to form his judgment, the deposition of a witness taken before the committing Magistrate, he is bound to let his intention, or the possibility that he may do so, be known to the accused and the prosecution, in order to afford the accused and the pioseeutor an opportunity for testing such statement by cross examination, or otherwise dealing with such statement as part of the case which may be taken into consideration by the Judge. Otherwise it seems to ma impossible for the prosecution of the defence to deal with the matters which may influence the Judge''s mind in coming to a decision,

This shows that before a previous deposition can properly be treated as evidence on which the Section Judge may base his judgment, the parties concerned must have an opportunity of testing it by cross-examination, etc.

Depositions in commitment proceedings can now be:

treated as evidence in the case for all purposes subject to the provisions of the Evidence Act, 1872.

This makes them available for use as substantive evidence (and not merely for contradicting or corroborating the makers u/s 145 or Section 157, Evidence Act), as was indeed held in several cases even before the addition of the words "for all purposes...1872" by the amendment of the section in 1923: vide Gansa Oraon v. Emperor AIR 1923 Pat. 550 and the case referred to in Jehal Teli Vs. Emperor, . But it is as a rule only when and so far as such depositions are not repeated in the Sessions trial that it becomes particularly necessary to make use of them. Section 145 of the Evidence Act, it is true, requires the attention of the witness to be drawn to his previous deposition only in those cases in which it is intended to use the previous record for the limited purpose of contradicting him; the object of the crossexaminer is to shake the evidence given by the witness at the trial. Although the putting in of depositions u/s 28S is not confined to this object, it is plainly necessary that the oral evidence given by a witness during the Sessions trial, so far as it conflicts with his previous deposition, should be properly displaced before the Court gives preference to his deposition before the committing Magistrate. Where a witness''s evidence at the trial differs from his previous deposition:

and the contradiction is intended to be used as evidence in the case, it has been held that ha must be allowed an opportunity of explaining or reconciling his statement if he can do so, and that if this opportunity is not given to him, the contradictory writing cannot be placed on the record as evidence. It has also been held that the opportunity of tendering an explanation is still more essential when a witness''s character and reputation are at stake, and that the Court is precluded both by Section 145, Evidence Act and by general principles from treating his oral testimony as rebutted by statements by him contained in documents in evidence unless such statements were put to him hi cross-examination

See Woodroffe''s Law of Evidence Edn. 8, p. 960, and the cases cited in the first two footnotes.

The principle, it seems to me, applies with even greater force where previous depositions, more or less inconsistent with the oral evidence given by the same witness during the trial, are sought to be used as substantive evidence; if the witness were not called to reconcile the contradictions (so far as he could), the record would contain two sets of unrelated statements, and it would be unfair to the witness himself no less than to the parties to accept the previous deposition and so reject the testimony given at the trial. The observations in Lachmi Lull''s case do not, therefore, seem to me to require reconsideration.